1.This
judgment will govern Special Leave Petition (Civil) Nos. 33194 of 2009, 33958
of 2009 and 35336 of 2009.

2.Leave
granted in all the Special Leave Petitions.

3.In
the first two Special Leave Petitions, judgment passed by the High Court of
Judicature at Allahabad dated 30.11.2009, is in challenge while in the third
Special Leave Petition, judgment dated 5.10.2009 on the same subject is
impugned. By the impugned judgments, the Writ Petitions filed by the land
owners challenging the notification under Sections 4 and 6 of the Land
Acquisition Act, 1894 (hereinafter called `the Act' for short) relating to
Yamuna Expressway Project, were dismissed by the High Court. In the Writ
Petitions, directions were sought, firstly not to give effect to the
notifications issued and further not to dispossess the landholders/ petitioners
after demolishing their constructions on the lands which were proposed to be
acquired. All the challenges were repelled by the High Court. The High Court,
in the judgment dated 30.11.2009 3 passed in Civil Misc. Writ Petition
No.31314 of 2009 basically pointed out that out of 12,282 land owners, 11,397
had already received their compensation under the agreement and the challenge
related only to 21.03 hectares out of 1,604 hectares of land. The High Court
also took the view that the scales of justice must tilt towards the right to
development of the millions who will be benefited from the road and the
development of the area, as against the human rights of 35 petitioners therein,
whose main complaint was that they were not heard before the declaration under
Section 6 of the Act.

The High Court also
declined to give any direction to the State Government to consider to exempt
21.03 hectares of land relating to the 35 petitioners therein on account of the
fact that the construction of the road had to be made in an alignment and that
alignment could not be changed. Identical view was taken in another Writ
Petition filed by one Balbir Singh. The High Court also expressed its concerns
that any direction to exempt the land covered by the construction might
seriously jeopardize the Project. The High Court also reiterated that the
acquisition of the land for interchange of the road was the essential part of
the Project, as also the 4 construction of bridges, culverts and interchanges,
which were essential for the fast moving six lane Expressway.

4.Before
we approach the arguments, it would be interesting to see some facts of this
litigation.

5.A
notification dated 20.2.2009 was issued by the Government of Uttar Pradesh
under Section 4(1) read with Sections 17(1) and 17(4) of the Act. Thereunder,
the lands described in the schedules appended thereto in District Agra, Pargana
Etmadpur, Tehsil Etmadpur, Village Kuberpur were covered for a public purpose,
namely, the construction of the interchange under the Yamuna Expressway Project
in District Agra through Yamuna Expressway Industrial Development Authority
(hereinafter called `YEIDA' for short). In fact, in the year 2001 itself, the
State Government had taken a decision for the construction of Yamuna Expressway
which sometimes earlier was named as Taj Expressway, which was to proceed from
Greater Noida to Agra. This was to be done on Build, Operate and Transfer (BOT)
basis and the builder was to get the rights to collect the tolls for a period
of 36 years from the date of commencement of commercial operations. On account
of the public outcry, 5 the State Government appointed a Commission of Enquiry
under the Chairmanship of Mr. Justice Siddheshwar Narain (Retd.). A Public
Interest Litigation was also filed.

The Project was
cleared in the enquiry and the Public Interest Litigation also ended in favour
of the Government of U.P. It is on the backdrop of this that the State
Government came up with a notification dated 20.2.2009, i.e. only after its way
was cleared, which itself took about 8 years. This was the reason given for
making applicable the urgency clause under Sections 17(1) and 17(4) of the Act.
Legal notices were served by those who were affected, but ultimately the State
came out with a notification dated 15.6.2009 under Section 6(1) read with
Sections 17(1) and 17(4) of the Act. It is mainly the complaint of the
appellants that they had purchased the land long time back and their names were
duly mutated in the Revenue records and they had thereafter raised
constructions over the land in question, and in those constructions, they were
running their business like shops, cold-storage etc. The appellants also
complained that the area which was proposed to be cleared for the interchange,
if acquired, the appellants would suffer immensely. The appellants very
seriously challenged the application of urgency 6 under Sections 17(1) and
17(4) of the Act to these acquisitions, thereby depriving the appellants of an
opportunity to be heard under Section 5A of the Act.

Even before us, that
is the main thrust of the arguments on behalf of the appellants.

6.The
other major challenge opposing the acquisition related to the concept of
`public purpose'. It was tried to be suggested that this was in fact an
acquisition without any public purpose for the Company- J.P. Infratech
Ltd.-respondent No.5 and would be covered under Part VII of the Act. In that,
the learned Counsel appearing on behalf of the appellants urged that there
could be no dispensation with enquiry under Section 5A of the Act. It was
pointed out that the compensation was payable by the private party under the
scheme and, therefore also, this could not be viewed as a public purpose. It
was also suggested that this was virtually a perpetual lease in favour of the
Company and, therefore, the Company was getting deemed proprietary rights.

7.In
the two impugned judgments, the Allahabad High Court has repelled all the
challenges. In fact in the earlier round of litigation that is in the Public 7
Interest Litigation itself the Division Bench of the Allahabad High Court
repelled the challenges to this Project which was then known as Taj Expressway
Project and the land acquisition made there for.

8.Before
we approach the questions argued, it will be better to refer to the judgment of
the Allahabad High Court in the Public Interest Litigation, which, in itself,
refers the enquiry held by Mr. Justice Sidheshwar Narain (Retd.). In fact one
of the prayers in the Public Interest Litigation was for production of the
Report dated 12.10.2006 of the Commission headed by Mr. Justice Narain. The
other prayers were to initiate de novo judicial enquiry by a sitting High Court
Judge and further to issue a Writ of Mandamus declaring the alleged Enquiry
Report as illegal, invalid and ineffective and not enforceable in the eyes of
law and lastly to pass any other Writ, order or direction. This Writ Petition
was then amended and the Concession Agreement dated 7.2.2003 entered between
the Taj Expressway Authority and the Jaiprakash Industries (hereinafter called
`the Company' for short) also came to be challenged. This Taj Expressway
Authority was constituted under Section 3 of the U.P. Industrial Area 8
Development Act, 1996 which later on was named as Yamuna Expressway Industrial
Development Authority (YEIDA).

The petitioners
prayed for a declaration that this agreement was null and void.

9.Another
prayer added by way of an amendment was for investigation by the special
investigation team into the entire deal of Taj Expressway Project. The High
Court in its well considered judgment, took note of the three challenges by the
petitioners to the said Commission of Enquiry Report. The said challenges were:

(1) that the award of
contract to the Company was activated by mala fides;

2) that the tender
process itself was faulty; and 3) that the terms of contract were
unconscionable and against the public interest.

10.All
the three challenges were refuted by the Division Bench of the High Court by
referring to the Report itself which was filed before it at the instance of the
State Government. It recorded a finding that there was no mala fide on the part
of anybody. The Commission had also come to the conclusion that the Agreement
with the Company was arrived at after proper scrutiny on the part of the
Government Officers and there was no mala fide on the alleged connection of
one 9 Shri Anup Mishra or his father with the Company. The Division Bench
affirmed this finding. The Division Bench also recorded a finding that the
petitioner therein was not able to place any other material on record to show
that the process itself was faulty or that the terms of contract were
unconscionable and against the public interest. While considering the amendment
made by the petitioner to the Writ Petition by which fresh challenges were
thrown against the Agreement dated 7.2.2003, the Division Bench came to the
conclusion that there was no procedural infirmity in the contract having been
awarded to the Company. The Division Bench then considered the other challenges
namely:

1) huge chunks of
lands had been given to respondent No.2 on lease for 90 years at a very nominal
lease rent.

2) Exemption of stamp
duty has been given to respondent No.2 causing loss of revenue to the State
exchequer.

11.The
Division Bench in detail considered the nature of lease and the nature of the
transaction. For that it went on to analyze the whole Project which had the three
objectives, namely:

(1) provide a fast
moving corridor to minimize travel time (2) to connect the main township/
commercial centres on the Eastern side of Yamuna (3) to relieve the National
Highway No.2 which was already congested and ran through the heart of cities
like Faridabad, Ballabhgarh and Palwal."

12.The
High Court then discussed the financial ramifications resulting out of the
Agreement and then after referring various judgments of this Court, went on to
decide the question whether before finalizing the contract in favour of
respondent No. 2 Company, the State Government or the Taj Expressway Authority
had undertaken the requisite research. It went on to record a finding as found
in the Commission of Enquiry that the authorities had examined all the aspects
of the matter before issuing the bid document inviting offers. It also recorded
that there was proper publication of the Notice Inviting Tender (NIT) in
various national Dailies and that 19 parties had responded to the NITs. The
High Court, therefore, recorded a finding that there was nothing shady and the
entire process was transparent.

The High Court also
registered a finding that it could not be said that undue concessions were
given to the Company in view of the fact that all such concessions had already
been spelt out in the bid document. Thus, 1 the High Court approved of the
findings reached in the Commission of Enquiry by Mr. Justice Siddheshwar Narain
(Retd.). Ultimately, the High Court dismissed the Public Interest Litigation.

13.It
is on this backdrop that number of Writ Petitions came to be filed again giving
rise to the two impugned judgments.

Basically two
questions emerge from the arguments made at the Bar before us. They are:-

1. The acquisition
itself cannot be said to be for the public purpose:

(a) as the object of
this acquisition is not covered by the definition of `public purpose' in
Section 3 (f) of the Land Acquisition Act.

(b) it cannot be said
that this acquisition would come under Part II of the Land Acquisition Act and
in fact it must be considered to be under Part VII of the Act since it
virtually amounts to acquisition of land for J.P. Infratech-a
company(respondent No.5).

(c) the compensation
for the land acquisition is coming wholly from the Jaypee Industries and not
from the 1 Government or from YEIDA and, therefore, it is not an acquisition
for public purpose.

(d) the acquisition
for so-called interchange is not at all necessary and it is actually a
colourable exercise of powers.

2. The application of
Sections 17 (1) and 17 (4) of the Land Acquisition Act was wholly unnecessary
and, therefore, illegal, (a) and, therefore, the Government could not have
dispensed with the enquiry under Section 5 A of the Act.

14.Learned
Counsel appearing on behalf of the appellants argued in support of the above
two main and the ancillary questions.

15.As
against this, learned Counsel appearing for the State as also for the Company
and YEIDA supported the acquisition and contended that it was futile to oppose
the acquisition, particularly, when the acquisition was virtually accepted by
all except a few, inasmuch as the learned Counsel contended that majority of
the landlords have accepted the compensation also and have not challenged the
acquisition in any manner. It is only a few extremely insignificant pockets
which are now caught in this litigation. The learned Counsel have specifically
averred that the whole process was extremely 1 transparent and that there was
necessity of this land considering the public purpose involved and that all
care was taken to safeguard the interests of the farmers and that the creation
of this Expressway and creation of five townships would immensely help the
general public residing on the Eastern Bank of Yamuna particularly, and the
residents of UP generally. It is on these rival contentions that we have to
proceed now.

16.Since
the land acquisition exercise is for the Yamuna Expressway Project, it would be
worthwhile to see some factual background thereof. U.P. Industrial Area
Development Act, 1976 came into force on 1.4.1976.

Section 3 thereof
provides for constituting an authority by a notification. The object of this
legislation is planned development of certain notified areas in the State by
building up integrated industrial townships.

The State Government
is empowered there under to declare the industrial development area and this
Act empowers the authority to acquire the land by direct purchase or through
State (under the provisions of the Land Acquisition Act, 1894). It also
requires preparing a Master Plan, to demarcate the sites into industrial,
commercial, institutional, residential and other land use 1 in accordance with
the Master Plan. Under Section 7 of the said Act, the authority is empowered to
allot its properties, by way of lease or otherwise, on such terms and
conditions as it may deem fit. An authority called Taj Expressway Industrial
Development Authority came to be constituted under this Act by a Notification
dated 24.4.2001. This Authority changed its nomenclature and became Yamuna
Expressway Industrial Development Authority (`YEIDA' for short) vide
Notification dated 11.7.2008.

This was with intent
to develop the Eastern Side of the river Yamuna by construction of a 6 lane
Expressway joining Noida to Agra and also for development of five regions along
the said Expressway into a planned industrial development area for residential,
industrial, institutional or recreational purposes. The industrial development
area was also notified on 24.4.2001, which then comprised of 8 villages. Later
on, vide notification dated 22.8.2001, as many as 63 No. of villages including
the village of some of the appellants were also included. By further
notifications, some more villages were also notified as part of industrial
development area. The area was in 4 districts, namely, Gautam Budh Nagar, Agra,
Mathura and Aligarh.

17.After
the constitution of the Authority (YEIDA), public notices for global tenders
were issued in 2001 inviting bids from interested parties desirous of
implementing the Project of the said 6 lane Expressway and the building of the
townships on Build, Operate and Transfer model. This Project, however, did not
proceed, as there was no eligible bidder and ultimately, the selection process
was dropped. Subsequently, in November, 2002, fresh bids were invited on the same
principles, but with an option either to enter into a joint venture (JV) with
the YEIDA or to implement the said Project without any equity partition of the
said Authority. In the Bid Document, the necessity of the major highway
connecting New Delhi with Mathura and Agra was reiterated with the objectives
(i) to provide a fast moving corridor to minimize the travel time, (ii) to
connect the main townships/commercial centres on the Eastern Side of Yamuna,
and (iii) to relieve NH-2 which was already congested and ran through the heart
of cities like Faridabad, Ballabhgarh and Palwal. It was informed to the
interested parties that the proposed Expressway was to be about 160 Kms. in
length shortening the distance between Noida and Agra with an estimated cost of
US $ 350 million. It was also informed that the 1 Expressway was to pass
through virgin area along the river Yamuna and that a band of 500 meters width
of land at five or more locations, of which one location was to be in Noida or
Greater Noida area along the Expressway, would be offered on acquisition cost
along the corridor as an integral part of the Project. It was further informed
that in addition to the land for Expressway, 25 million square meters land
along the same would be given at acquisition cost for development of the same
for commercial, amusement, industrial, institutional and residential purpose.
Bids were invited from all the interested parties having experience in the
construction/development of infrastructure Projects including real estate
development and it was informed that the selected developer would be offered 25
millions square meters of land for development on acquisition cost on lease for
a period of 90 years. It was also informed that the concession period would be
for 7 years from the date of signing of the Concession Agreement and all the
assets related to the Expressway were to stand transferred on the date of
signing of the Concession Agreement in favour of such a successful bidder. The
Bid Document also provided that the successful bidder would have the right to
levy, collect and retain toll from the 1 public using the Expressway during
the concession period.

Tender of Jaiprakash
Industries Ltd. was accepted and thus they became the successful bidder as they
had claimed the lowest concession period of 36 years.

18.The
Concession Agreement dated 7.2.2003 also came to be executed between the
parties. However, before the work could start, the whole Project got stuck up
in the litigation, upon which the Enquiry Commission was appointed by the State
Government under the Chairmanship of Mr. Justice Siddheshwar Narain (Retd.).
Before that, two Commissions of sub enquiries were constituted. While the
Report of the first Commission was quashed by the Allahabad High Court, the
second Commission of Enquiry could not proceed at all, as the Members had
resigned.

Ultimately, Mr.
Justice Siddheshwar Narain (Retd.) completed the enquiry and submitted his
Report in October, 2006. Thereafter, as has already been pointed out earlier, a
Public Interest Litigation came to be filed by way of a Writ Petition before
the Allahabad High Court, which was dismissed by the Allahabad High Court.

It was thereafter
that the process of land acquisition commenced in September, 2007. In the first
phase, land for Expressway was acquired. Subsequently, the 1 acquisition
process started for the land for development.

The first Writ
Petition being Civil Misc. Writ Petition No. 48978 of 2008 came to be filed by
one Balbir Singh, challenging the Notification dated 15.10.2007 issued under
Section 4 of the Act, as also the Notification dated 4.1.2008 issued under
Section 6 of the Act.

Status quo order was
passed on the said Writ Petition.

On its heels, other
Writ Petitions were filed, the main Writ Petition being Civil Misc. Writ
Petition No. 31314 of 2009 filed by one Nand Kishore Gupta. The status quo
orders were passed even in that Writ Petition.

Ultimately, the Writ
Petition of Balbir Singh was dismissed by a judgment dated 5.10.2009 and that
of others including Nand Kishore's came to be dismissed on 30.11.2009. It is on
this historical backdrop that we have now to consider the correctness or
otherwise of these two judgments, which pertain to, more or the less, same
subject, but with slight variation.

19.The
Writ Petition filed by Balbir Singh proceeded, inter alia, on the grounds that
acquisition was a colourable exercise of power and was one which should have
been accomplished by complying with the provisions of Part VII of the Act as
this was an acquisition for 1 company. By the judgment dated 5.10.2009, the
High Court dismissed the Writ Petition holding that (a) the entire process of
acquisition was in accordance with the provisions of the Act and this was not a
colourable exercise of powers, (b) the land in instant case was indeed acquired
for public purpose, namely, construction of Yamuna Expressway Project, (c) the
land was not acquired for company and as such the procedure under Chapter VII
was not applicable.

It was also urged in
that case that the entire cost of the acquisition was to be borne by the
Company and the Company had to pay the entire dues towards acquisition cost
and, therefore, there was no public purpose in this acquisition and the
so-called public purpose appearing in the Notification was a camouflage. It was
further urged that since even a part of compensation was not coming from the
Government out of the public revenue or some fund controlled by the local
authority, this acquisition was not for the public purpose. In Balbir Singh's
case, all these objections were dismissed.

20.More
or the less, same contentions with some difference were raised in Nand
Kishore's case also, the judgment which also disposed of the Civil Misc. Writ
2 U.P. & Ors.), Civil Misc. Writ Petition No. 35090 of 2009 Civil Misc.
Writ Petition No. 51537 of 2009 (Bhupendra U.P. & Ors.), Civil Misc. Writ
Petition No. 51546 of 2009 Misc. Writ Petition No. 51551 of 2009 (Jagvir Singh
& No. 60587 of 2009 (Kadival Infrastructure Pvt. Ltd. & Petition being
Civil Misc. Writ Petition No.31314 of 2009 The individual grievances raised in
all these Writ Petitions were dealt with and the challenges were rejected. The
two main points, as culled out by us, were dealt with as in Balbir Singh's
case.

21.Insofar
as the individual grievances are concerned, they were mostly in the nature of
plea regarding the constructions having been there in this land required for
interchange. For example, in Nand Kishore Gupta's case, it was claimed that
there was cold storage of the 2 petitioner No. 1 therein and shops in cold
storage, a temple in plot No. 139, a weigh bridge (Dharm Kanta) on plot No. 122
and some of the plots were owned by Trishul Awas Sahkari Awas Samiti. It was
stated in Civil Misc. State of U.P. & Ors.) that the petitioners had a
house and a boundary wall on some Khasras and some constructions on the others.
In Civil Misc. Writ Petition No. 35090 of 2009 (J.S. Horticulture Pvt. Ltd.

10'X11' high boundary
wall and constructed rooms inside a `Goshala' and 3 tube wells with several
trees. In Civil Misc. Writ Petition No. 51537 of 2009 (Bhupendra Singh & was
an agricultural land and the petitioners therein depended on the same for their
livelihood. In still other Writ Petitions being Civil Misc. Writ Petition No. Civil
Misc. Writ Petition No. 51546 of 2009 (Vijay Singh of U.P. & Ors.), the
same plea of cultivation was raised.

In Civil Misc. Writ
Petition No. 60587 of 2009 (Kadival 2 Ors.), the petitioners claimed that they
had purchased 7 plots with the total area of 24060 sq. meters and they were
plots for industrial purposes and that the plot of Yashoda Devi was a fertile
land.

22.The
High Court has refuted all these contentions by giving good reasons. We will
not go into these individual cases once the High Court has decided not to
entertain these plea and, in our opinion, correctly.

After all, this was
an acquisition for building up a highway and the abovementioned Writ Petitions
pertained to the land required for interchange. It is obvious that the
alignment of the highway cannot be changed, as its design has been prepared
after consideration of so many factors by the experts in building the road. Its
direction or alignment, therefore, cannot be changed, with the result, the area
which is required for interchange, also cannot be changed. This is a typical
example of the individual having to sacrifice his land for the public good.
There can be no dispute that this road would add to the betterment of the
citizens of the East Yamuna area in particular and Uttar Pradesh in general.
This is apart from the fact that the majority of the persons whose lands have
been acquired, have 2 either not objected to it or have accepted the
compensation without any demur. It will, therefore, not be possible for us to
go into these individual grievances, which have been rightly rejected by the
High Court. In fact, in Balbir Singh's case, it was pointed out that out of the
12,315 affected farmers in 133 villages over the total area of 1,638 hectares
of the Expressway, 11387 have already received compensation and only 142
farmers have raised the issues. The High Court has rightly held that the
private interest is always affected to some extent in such large schemes
requiring the acquisition of land. The High Court has rightly held that a
holistic view had to be taken to look for an all round development without
forgetting about our heritage, culture and traditions. We also, therefore,
would not entertain the objections, feebly raised before us, individually.

23.We
have now to see as to whether the challenge posed by the appellants herein
about this acquisition not being for public purpose is justified or not. Shri
Ranjit Kumar, Shri Debol Banerjee, learned Senior Counsel and Ms. Meenakshi
Arora, learned Counsel appearing on behalf of the appellants, vehemently urged
that this acquisition, in the first place, is colourable exercise of power. All
the learned Counsel urged that the very nature the whole transaction showed was
that the whole acquisition was tailor made for the respondent Company.

The learned Counsel
further urged that it was meant only for the benefit of the Company, inasmuch
as, though the acquisition should have been made under the provisions of Part
VII of the Act, it was carried out in terms of the provisions of the Part II of
the Act, citing this to be an acquisition for public purpose. According to the
learned Counsel, there already existed a road which was a functional road and
Yamuna Expressway is only an excuse to develop the feeder road to connect the
five proposed townships. The learned Counsel urged that the huge land of 25
million square meters has virtually been handed over to the respondent Company
on a platter and, therefore, all this exercise was clearly not for the public
purpose. It was further urged that the so-called Concession Agreement dated
7.2.2003 was one-sided, inasmuch as, even if it was terminated, the land which
was given to the Company for development, would have remained unaffected. It
was further urged that considering the length of the lease period of 90 years,
the land was virtually given to the Company for ever, and 2 it was nothing but
transferring the same in favour of the Company. It was then pointed out that it
was only the Expressway which would revert back to the Government after 36
years, but not the land measuring about 25 million square meters, which would
be wholly managed by the Company. In fact, the learned Counsel argued that this
cannot be said to be an integrated Project, as the land for Expressway and the
land for development have been treated on an entirely different and unequal
footing. It was also pointed out that the present purpose was not a public
purpose as envisaged in Section 3(f) of the Act. The learned Counsel pointed
out that from the Agreement itself, it is clear that the entire cost of the
acquisition is going to be borne by the Company and, therefore, there can be no
doubt that the acquisition is for the Company and not for the public purpose.
The learned Counsel argued that merely because the Company has paid the entire
cost of acquisition alongwith Rs.100/- per hectare per year by way of premium,
it cannot be denied that it is only the private respondent who is bearing the
entire cost of the acquisition and the State Government/YEIDA has not
contributed anything. Heavily relying on the decision in 2 SCC 626], the
learned Counsel argued that this issue needs to be addressed by this Court on
the backdrop of this case.

24.As
against this, the learned Counsel appearing on behalf of the State, as also for
the Company and YEIDA, pointed out that this cannot be said to be a colourable
exercise of power. They also pointed out that there cannot be any dispute about
the utility of this Project and its benefits to the public. They further
pointed out that the whole process has been extremely transparent.

They also pointed out
that this acquisition cannot, under any circumstances, come within Part VII of
the Act. The learned Counsel further pointed out that the five developed
parcels of the land were going to revert to the acquiring body after 90 years,
and the period of 90 years cannot provide a permanency to the whole
transaction.

The learned Counsel
urged that the State ultimately was going to receive a 6 lane Expressway which
was 160 Kilometers long along with five developed parcels of land on the
Eastern Side of Yamuna river. The learned Counsel also pointed out that all
this was going to help the industrialization and the overall development of
that area in particular and the State in general, apart from 2 the fact that
this highway would reduce the traffic congestion presently felt on N.H.-2. The
learned Counsel pointed out that it will also release the congestion, as it
exists in the cities and would help smooth movement of people, goods and
material.

25.The
learned Counsel also urged that the creation of five planned parcels of land
under the Scheme would immensely help the trading activities in the State and
would be extremely useful for the citizens. The learned Counsel further pointed
out that the land would be put to the industrial, commercial, residential,
amusement or institutional purposes which would ultimately serve the public
purpose. Lastly, on this question, the learned Counsel urged that it was a
misnomer to say that the compensation was coming only from the private coffers
of the Company. The learned Counsel also referred to the nature of the
agreement i.e. the BOT contract. The contention raised was that a BOT contract,
by its nature cannot be equated to or with an acquisition for a Company.
According to the learned Counsel, all that the Government was doing was merely
choosing a third party agency to implement the work of building, designing,
financing or running the Project, and that the Government 2 was utilizing the
expertise and enterprise of a third party.

26.Our
attention was also invited to two decisions of this Court concerning the BOT
contracts and the allegations made relating to them. The decisions were
Organization & Ors. [2006 (4) SCC 683] and Sooraram District & Ors.
etc. etc. [2008 (9) SCC 552].

27.The
first and foremost thing which we must keep in mind while deciding these
matters is that at least in the present two matters (Balbir Singh's case
decided on 5.10.2009 and Nand Kishore's case decided on 30.11.2009), the
subject related only to the acquisition of few hectares of land as compared to
the acquisition of large chunk which has not been challenged. Further, it is an
admitted position that majority of the acquisition proceedings are over. In
Balbir Singh's case also, the persons who challenged the Project, were 9 in
number, owning about 7.09 hectares of land i.e. about 0.42% of the total land.
It has been strongly argued on behalf of the State, the Company and YEIDA that
the major activity of land acquisition process is over. It has been noted 2 in
Balbir Singh's case that out of the 12,315 affected farmers in 133 villages
over the total area of 1,638 hectares of the Expressway, 11387 have already
received compensation and only 142 farmers out of such a large number of
villages have raised the issues, leaving 139 farmers who had not taken the
compensation. This is apart from the fact that only 9 Writ Petitioners came in
that Writ Petition. The story in Nand Kishore's Writ Petition which was disposed
of by the High Court alongwith other Writ Petitions is no different. The
learned Counsel appearing on behalf of the appellants could not deny the fact
that the total number of petitioners concerned in these acquisition
proceedings, coming up before the High Court, was extremely insignificant as
compared to those who had accepted the compensation. Of course, that by itself
may not be the only reason to hold against the appellants (petitioners),
however, that fact will have to be kept in mind while deciding the issues which
cover the whole acquisition process, which acquisition is for the purpose of
development of 25 million square meters of land. The High Court has also
noticed this aspect. We have mentioned this aspect only with a limited
objective of showing that the criticism against the whole scheme which 3 would
invalidate the acquisition would be difficult to be accepted, particularly in
this case, in view of the fact that majority of the land owners have parted
with possession, taken the compensation and thus, the whole scheme has
progressed to a substantial level, wherefrom it will be extremely difficult now
to turn back to square one.

28.We
must point out that at the time when the Project conceived in 2001, the present
Company was not in existence. It came in existence only later on. This is an
admitted position also. Therefore, it cannot be said that the whole Project was
envisaged keeping this Company in view. That would be the first reason to
reject the argument that the whole scheme was a result of colourable exercise
of power. We also cannot ignore the fact that a full-fledged enquiry was got
done by the State by constituting a Commission of Enquiry under the
Chairmanship of Mr. Justice Sidheshwar Narain. The said Commission of Enquiry submitted
its Report in October, 2006 and it was duly accepted by both the Houses of the
Legislature of the State of Uttar Pradesh. Again, we also cannot ignore that
the aspects of the transparency have been examined by the Division Bench of the
Allahabad 3 High Court in a P.I.L., which was dismissed by a well- considered
judgment, which remained unchallenged. We have already made reference to that
judgment. Nobody has so far argued that any specific partial treatment was
offered to the Company nor has it been pointed out at any stage that there was
anything amiss with the tendering process or that the tender of contract to the
Company herein was a foregone conclusion. We, therefore, cannot subscribe to
the contention that this acquisition was a colourable exercise of power. We
must say that there was a full transparency in the whole process and the whole
process was checked, rechecked and re-rechecked, leaving no scope to infer any
bias in favour of the Company.

29.It
was pointed out that initially the award was preceded by issuance of an
advertisement in the leading newspapers throughout the country. It was also
pointed out that the offers were invited on the basis of a global tender and as
many as 19 parties entered the fray, and that it is only thereafter that the
present respondent Company was chosen for the award of the tender. Again, the
essential features of the transaction appear to be that (i) Project was to be
implemented on the Build Operate and Transfer model, (ii) Project conceived of
the 3 construction of the Expressway as well as development of land parcels at
five different locations and (iii) the land for development was to be provided
to the selected bidder on a lease of 90 years upon payment of acquisition cost
and necessary lease rentals. There was, thus, a complete transparency in the
whole affair. It is also to be seen that this was not a case where the exercise
of power of eminent domain by the State was for any of the purposes set down in
Section 40 of the Act. Further, it is not as if the power of acquisition was
exercised by the State Government for the work or Project of the Company.
Lastly, it is not a case where the power of exercise was exercised by the State
Government so that the acquired land was to belong or vest permanently in the
Company for its own purpose. It was pointed out that the lease is going to be
for 90 years after which the whole land is going to revert back to the State
Government, so also the whole land acquired and used actually for the purpose
of the highway would also go back to the State after the period of 36 years,
during which the Company would have the right to levy and collect the toll. It
is not as if a public purpose is relevant in Part VII, where under Section 39,
the previous consent of appropriate Government is required 3 for execution of
an agreement between the Government and the Company. Section 40 of the Act then
puts a specific rider that the State Government shall not give the consent
unless it is satisfied of any of the contingencies described in sub-Sections
(a), (aa) and (b) thereof, which are as under:-

40. Previous
enquiry:- (1) Such consent shall not be given unless the appropriate Government
be satisfied, either on the report of the Collector under Section 5A,
Sub-section (2), or by an enquiry held as hereinafter provided,- (a) that the
purpose of the acquisition is to obtain land for the erection of dwelling
houses for workmen employed by the Company or for the provision of amenities
directly connected therewith, or (aa) that such acquisition is needed for the
construction of some building or work for a Company which is engaged or is
taking steps for engaging itself in any industry or work which is for a public
purpose, or (b) that such acquisition is needed for the construction of some work,
and that such work is likely to prove useful to the public.

This would suggest
that even when the acquisition is meant for the Company, the concept of public
purpose has to be at the back of mind of the acquiring body like Government.
Here, of course, there is no question of any agreement with the Company as the
three eventualities described under Section 40 of the Act are not available for
the simple reason that the basic idea for the acquisition under Part VII of the
Act is the total 3 transfer of the ownership of the acquiring land in favour
of the Company. That is obviously not present here. We do not see any factual
background for holding that any agreement was contemplated in between the State
Government and the Company or for that matter, YEIDA and the Company, as
envisaged in Sections 39, 40 and 41 of the Act. It was tried to be canvassed
before us that there would be a difference in concepts of a public purpose and
the work useful to the public. We are not much impressed by this argument in view
of the fact that there is absolutely no evidence to suggest that this is an
acquisition for the Company, basically on account of the fact that the acquired
land is not to vest with the Company. This was clearly a Project conceived and
justified by the State Government, while the concessionaire was to be chosen
only to implement the Project. The Project was going to be implemented on the
basis of principles of BOT. Therefore, after the operating period is over, the
assets of the Project were to be transferred to the State Government. There was
going to be no vesting of land as in case that if the acquisition was being
effected under Part VII of the Act.

We, therefore, do not
accept the argument that this was either a colourable exercise of power or was
meant for 3 the Company. We are not impressed by the argument that this was an
acquisition for the Company. The High Court, in Balbir Singh's judgment, has
correctly come to the conclusion that this acquisition was not meant only for
the Company and on that count, it could not be said that this is not for the
public purpose. The learned Counsel, however, vehemently argued that the whole
compensation had come from the Company and, therefore, this acquisition cannot
be said to be for a public purpose.

We shall tackle this
point a little later. However, before we proceed to do that, we must express on
the utility of the Expressway, which was conceived, as also the development of
five parcels of land.

30.During
the debate, our attention was invited to Section 3(f) of the Act, which
contains a definition for `public purpose'. It was pointed out that where the
acquisition is for the Company, it cannot amount to a public purpose. There can
be no dispute about this proposition that where the acquisition of land is for
the companies, it cannot amount to a public purpose. It was, therefore, our
endeavour to find out whether this land was for the Company and we are quite
satisfied with a finding recorded by the High Court that this acquisition 3
was not for the Company but was for the public purpose.

The Expressway is a
work of immense public importance.

The State gains
advantages from the construction of an Expressway and so does the general
public. Creation of a corridor for fast moving traffic resulting into curtailing
the traveling time, as also the transport of the goods, would be some factors
which speak in favour of the Project being for the public purpose. Much was
stated about the 25 million square meters of land being acquired for the five
parcels of land. In fact, in our opinion, as has rightly been commented upon by
the High Court, the creation of the five zones for industry, residence,
amusement etc., would be complimentary to the creation of the Expressway. It
cannot be forgotten that the creation of land parcels would give impetus to the
industrial development of the State creating more jobs and helping the economy
and thereby helping the general public. There can be no doubt that the
implementation of the Project would result in coming into existence of five
developed parcels/centers in the State for the use of the citizens. There
shall, thus, be the planned development of this otherwise industrially backward
area. The creation of these five parcels will certainly help the maximum
utilization of the Expressway and the existence 3 of an Expressway for the
fast moving traffic would help the industrial culture created in the five
parcels.

Thus, both will be
complimentary to each other and can be viewed as parts of an integral scheme.
Therefore, it cannot be said that it is not a public purpose.

31.We
must, at this stage, take into account the argument that the whole compensation
is coming wholly from the Company and not from the Government or from YEIDA.
The appellants invited our attention to Clause 4.1(d) of the Concession
Agreement. On that basis, it was argued that the Company has paid the
compensation cost and, therefore, the acquisition is clearly covered under Part
VII of the Act, and there may be no public purpose if the acquisition is made
for the Company and it is the Company who has to shell out the whole
compensation. Now, this argument is clearly incorrect.

32.Even
if we accept for the sake of argument that all this compensation is coming from
the Company, we must firstly bear it in mind that the Company gets no
proprietary or ownership rights over the Project assets. Now, if it is presumed
that the compensation is coming from the Company, then it will have to be held
that the whole assets would go to the Company. At least that is envisaged in
Part VII of the Act. Here, that is not the case. The assets are to revert back
to the acquiring body or, as the case may be, the Government. Even the lands
which are utilized for the construction of the Expressway are to go back to the
Government barely after 36 years i.e. after the Company has utilized its rights
to recover the toll on the Expressway. Secondly, it must be borne in mind that
the Concession Agreement has been executed in February, 2003, whereas the
acquisition process started somewhere in the month of September, 2007. When the
Concession Agreement was executed, the cost factor was not known. The acquiring
body was only to make available the land to the concessionaire to implement the
Project. There would be number of difficulties arising, as for example, it
would be clearly not contemplated that the land would be made available without
any value or that there would no scheme for the State Government for recovering
the expenses that it would incur in obtaining the land. The learned Counsel
appearing for the State as also for the Company and YEIDA argued that in order
to overcome and iron out such difficulties, the Agreement provides that the
land would be leased on a premium equivalent to the acquisition cost. This
argument proceeds on the basis of Clause 4.3 3 C of the Concession Agreement.
It is to be noted then that the premium of the land was not going to be just
the acquisition cost, but also the lease rent of Rs.100/- per hectare.
Therefore, the State Government was to earn Rs.100/- per hectare for the total
acquired land, which was about 25 million square meters over and above the
compensation to be decided. The mention of the compensation amount in addition
to the lease money of Rs.100/- per hectare would clearly provide that the whole
compensation was not going to be paid by the Company alone. This is apart from
the fact that through this agreement, only the extent of the compensation
payable by the Company to YEIDA was decided. However, once all the amounts went
to the coffers of YEIDA, it would lose its independent character as a premium.
When it goes into the coffers of YEIDA, it is the YEIDA who would make the
payments of the estimated compensation and thereby it would be as if the
compensation is paid not by the Company, but by YEIDA. The respondents have
relied on the law laid down in Pratibha Nema's Case [cited supra], more
particularly, paragraphs 24 and 25 therein. The respondents also argued relying
upon the decision in Ors. [1996 (10) SCC 632]. The respondents argued that 4
the law laid down in Pratibha Nema's Case (cited supra) emanates from the
judgment in Naihati Municipality & Ors. India Manufacturers Organization
& Ors. [cited supra] and Ranga Reddy District & Ors. etc. etc. (cited
supra) were pressed in service by the respondents.

33.All
India Manufacturers Organization & Ors. (cited supra) pertain to
Bangalore-Mysore Infrastructure Corridor Project). While considering what the
public purpose was, this Court in paragraphs 76, 77, 78 and 79 took stock of
the contention, whereby it was suggested that land far away from the actual
alignment of the road and periphery had been acquired and, therefore, even if
the implementation of the highway Project was assumed to be for the public
purpose, the acquisition of the land far away there from would not amount to a
public purpose nor would it be covered by the provisions of the Karnataka
Industrial Areas Development Act, 1966 (KIAD Act). In the present case also, it
was argued that the lands which are being acquired for the interchange would
not at all 4 be necessary. Further, it was argued that the five parcels of
land which is being acquired for the development of five industrial townships,
could not be said for the public purpose nor could it be said to be a part of
the present integrated scheme. This Court had refuted this argument holding
that even in case of Bangalore-Mysore highway Project, the lands even little away
from the main alignment of the road, had to be a part of this Project and the
Project was an integrated infrastructure development Project and not merely a
highway Project. It was conceived originally as the Bangalore-Mysore
Infrastructure Corridor Project, which conceived of the development of roads
between Bangalore and Mysore, for which there were several interchanges in and
around the periphery of the city of Bangalore, together with numerous
developmental infrastructure activities along with the highway at several
points. The situation is no different in the present case.

Therefore, the
contention that this acquisition was not for public purpose, is rejected.

1.

2.

3.

4.

5.

6.

7.

8.

9.

10.

11.

12.

13.

14.

15.

16.

17.

18.

19.

20.

21.

22.

23.

24.

25.

26.

27.

28.

29.

30.

31.

32.

33.

34.Collector,
Ranga Reddy District & Ors. etc. etc. (cited supra), same question cropped
up which has been mentioned 4 in Paragraphs 9, 10 and 11 of the judgment
suggesting that there was no public purpose and in fact, it was an acquisition
for a private Company under Part VII of the Act and, therefore, the power of
eminent domain would have no application to such case. The contentions raised
in that judgment in paragraphs 16, 17 and 18 are almost similar to the
contentions raised herein. The Court has extensively dealt with the question of
public purpose in paragraph 66 and has taken stock of practically all the cases
till paragraph 109 therein. It will not be necessary for us to repeat all the
case law and the questions raised and considered in these paragraphs, such as
industrial policy of the State, acquisition for Company etc. In fact, while considering
the contention regarding the industrial policy of the State, the Court has
taken into consideration the oft-quoted case of Ors. [2007 (8) SCC 418], where
this Court has come to the conclusion that in the absence of illegality or
violation of law, a Court of law will not interfere in the policy matters.
Similar is the case here, where the development of the industrial
infrastructure along the Expressway for the overall betterment of the region
and further for the industrialization of the otherwise backward region of 4
Uttar Pradesh, was considered as a policy. In this judgment again, the Court
has extensively considered the question as to whether and under what
circumstances, the acquisition could be said to be the acquisition for the
Company. In that, the Court has also considered the 1960 SC 1203]. The Court
quoted the observations in the of Bombay (cited supra) to the following
effect:- "These requirements indicate that the acquisition for a Company
also is in substance for a public purpose inasmuch as it cannot be seriously
contended that constructing dwelling houses, and providing amenities for the
benefit of the workmen employed by it and construction of some work of public
utility do not serve a public purpose."

We have already
considered this question that in the present case, there is nothing to indicate
that the acquisition is for the Company i.e. for Jaiprakash Industries Ltd. It
is only, therefore, that we are at pains to point out that the Government was
only using the Company for implementing its policy.

35.In
the aforementioned judgment of Sooraram Pratap & Ors. etc. etc. (cited
supra), Hon'ble Thakker, J. has 4 State of Punjab [AIR 1961 SC 343], where the
acquisition was for construction of houses by members of Thapar Industries Cooperative
Housing Society Ltd., Yamuna Nagar. The challenge was that there was
non-compliance of the provisions of Part VII of the Act, though the acquisition
was for the Company under Part VII of the Act. The High Court, in that case,
held that the acquisition was for a public purpose and there was no need to
comply with the provisions of Part VII of the Act. In fact, practically all the
decisions on the subject of acquisition for the Company and public purpose have
been considered in this judgment of Sooraram Pratap & Ors. etc. etc. (cited
supra), which itself is a locus classicus. Ultimately, this Court came to the
conclusion that the acquisition made by the State of Andhra Pradesh could not
be faulted, as it was in pursuance of policy decision for development of the
city of Hyderabad and in pursuance of that policy, an integrated Project was
taken up for development of the city of Hyderabad into a business-cum-leisure
tourism infrastructure centre. The Court also came to the conclusion that the
Andhra Pradesh Infrastructure and Investment Corporation (APIIC) in the
reported decision was a nodal agency like YEIDA in the present case which was
to generate the revenue and help the development of infrastructure for
industrialization of the area. The Court also recognized that such
instrumentality of State would have the power of eminent domain. Like the
present case, the Court held the Project to be an integrated and indivisible
Project. We have no doubt that in the present case also, the Expressway as well
as the five parcels which are to be developed are part of an integrated and
indivisible Project. In the reported judgment of Sooraram Pratap & Ors.
etc. etc. (cited supra), it has also been found that the entire amount of the
compensation was to be paid by the State agency APIIC, just like in the present
case, where the entire amount is to be paid by YEIDA, which agency is working
as a nodal agency for the execution of the Project. The Court has also found
that where the power of eminent domain is exercised mala fide or for collateral
purposes and de hors the Act or in an irrational or unreasonable manner or when
the purpose is `no public purpose' and the fraud on statute is apparent, a Writ
Court can undoubtedly interfere. It has been found very specifically here that
the present matter is not suffering from the above defects. In this judgment,
4 the subject of eminent domain has been discussed and considered with
thoroughness and all the ramifications of the principle of eminent domain have
been discussed. We have already culled out the principles emanating from this
decision in the earlier part of this judgment and even at the cost of
repetition, we may say that this judgment is practically, the law setter on the
subject of eminent domain, as also on the other allied subjects of acquisition.
The judgment has also explained the concept of `public purpose', which has been
held to be wider than `public necessity'. The judgment proceeds on a basis that
merely because the benefit goes to a particular section of the society, the
acquisition does not cease to be for the public purpose. It has been
specifically held that where the State is satisfied about the existence of a
public purpose, the acquisition would be governed by Part II of the Act, as has
happened in the present District Collector, Ranga Reddy District & Ors.
etc. etc.

(cited supra) is an
authoritative pronouncement on the mode of payment, as also on the construction
of Sections 40 and 41 of the Act. In fact, this judgment is a complete answer
to the argument of the appellants that this acquisition is not for public
purpose.

36.The
respondents then fall back upon the nature of the transaction, saying that
since the whole transaction is on the BOT basis, the Government has merely
chosen a third party agency to implement the Project instead of taking up
itself the task of building, designing, financing or running the Project. It
was pointed out that in such contracts, the assets did not go to the private
enterprise which was chosen by the Government.

On the other hand,
the assets revert to the Government and, therefore, the BOT Project can never
be akin to the acquisition of land for a Company under Part VII of the Act,
where the land and the assets vest and belong to the Company. The respondents
argued that when a BOT contract is tested in the light of the provisions of
Part VII of the Act, as also the Land Acquisition (Companies) Rules, 1963, it
would come out that there has to be an agreement between the State and the
Company, which necessarily provides for the payment of cost of acquisition to
the Government. It must entail the transfer of such land to the Company.
Similarly, under Rule 5 of the Rules of 1963, the agreement must itself make
provision that the land will be utilized only for the purposes for which it was
acquired and if the Company commits breach of any condition of the agreement,
the Government would be 4 entitled to declare the transfer of land to it to be
null and void, so also if the Company fails to utilize the entire land acquired,
the unutilized portion would revert to the Government. The respondents argued
that in a BOT contract, the land is only leased to a third party agency for the
purposes of implementation of the Project. There is no occasion for declaring
the transfer of land to be null and void. There would also be no occasion for
reversion of the utilized land of the State Government.

The respondents,
therefore, argued that a BOT contract can never be contemplated as falling
under Part VII of the Act.

37.Some
other decisions which were pressed in service of Punjab & Ors. [AIR 1963 SC
151], more particularly, the observations in paragraph 40 therein, where the
Constitution Bench of this Court observed that if the purpose of acquisition is
not related to a public purpose, then a question may well arise whether in
making the declaration there has been on the part of the Government, a fraud on
the power conferred on it by the Act. We have already discussed the factual
situation here for pointing out that this acquisition was indeed 4 for the
public purpose and cannot be held to be for respondent Company. In that view,
the criticism is not of Punjab (cited supra) was also referred to and, more
particularly, the observations in Paragraph 8 therein.

There can be no
dispute about the principles laid down;

however, as we have
already pointed out, this case has been thoroughly considered in Sooraram
Pratap Reddy & etc. etc. (cited supra). We have already returned a finding
that the compensation in this case does not come from the respondent Company
alone. We approve of the finding returned by the High Court in that behalf.

During the debate,
the decision in Devinder Singh & Ors. referred to. It was urged that there
was a conflict in this decision and the decision in Pratibha Nema's Case (cited
supra). This was a case where the petitioners who were the owner of the
agricultural lands, had challenged the acquisition of lands for M/s.
International Tractors Ltd. It was claimed that the land was being acquired for
public purpose i.e. setting up the Ganesha Project of M/s. International
Tractors Ltd. at various villages.

The High Court had
held that the land acquisition was for 5 public purpose. This Court explained
the public purpose as defined in Section 3(f) of the Act and noted that the
aforementioned Ganesha Project was not a Project of the State, but the one
undertaken by the Company M/s. International Tractors Ltd. The Court then went
on to consider Sections 40 and 41 of the Act along with Rule 4 of the Land
Acquisition (Companies) Rules, 1963 and came to the conclusion that the same
could not be a public purpose as the whole compensation was coming from the
coffers of the Company. In that view, the Court further came to the conclusion
that the State not having followed the provisions of Sections 40 and 41 of the
Act, the whole process had suffered illegality. The Court also considered the
decision in Pratibha Nema's Case (cited supra) and distinguished the same by
making a comment to the following effect:- "But we must hasten to add that
the Bench did not have any occasion to consider the question as to whether the
State is entitled to take recourse to the provisions of both Part II and Part
VII of the Act simultaneously."

The Court, however,
refused to go into the nicety of the question and observed that in a case of
acquisition for a public Company, public purpose is not to be assumed and the
point of distinction between acquisition of lands 5 under Part II and Part VII
of the Act would be the source of funds to cover the cost of acquisition. The
Court also considered the judgment of this Court in Smt. Pradesh & Ors.
[AIR 1965 SC 427]. Ultimately, the Court came to the conclusion that the
necessary provisions not having been found, the view of the High Court was not
correct, whereby it had upheld the land acquisition, holding it to be for the
public purpose. We have closely seen the judgment; however, the factual
situation in the judgment is quite different. In our opinion, the judgment will
not help the appellants to contend that the present land acquisition is not for
public purpose. We also do not think that there is any serious conflict between
the decision in Pratibha Nema's Case (cited State of Punjab & Ors. (cited
supra), so as to require a reference to the larger Bench. In our opinion, the
decision in Pratibha Nema's Case (cited supra) applies to the fact situation in
this case. Therefore, considering the overall factual situation, we are of the
opinion that the High Court was right in holding that the acquisition 5 was
made for the public purpose. We find from the order of the High Court that the
High Court has considered the question of public purpose keeping in mind the
correct principles of law. We are, therefore, of the opinion that the
contention raised by the learned Counsel for the appellants that this
acquisition was not for the public purpose for various reasons which we have
discussed, is not correct.

38.This
takes us to the next point pertaining to the application of Sections 17(1) and
17(4) of the Act. The learned Counsel for the appellants have vociferously
urged that there was no necessity whatsoever to apply the urgency clause to
these acquisitions and further to avoid the enquiry under Section 5A of the
Act. According to the learned Counsel, this dispensation of Section 5A enquiry
was not only unjust, but added to the sufferings of the appellants who had lost
their fertile land. It was pointed out that this Project was slumbering since
2001 and it was in order to infuse fictitious urgency that a reference to the
Commonwealth Games was made.

According to the
appellants, Right to be heard was akin to the Fundamental Rights and its breach
has rendered the whole acquisition exercise illegal. Numbers of 5 authorities
were relied upon by the appellants. The respondents, on the other hand, argued
that there was material available before the Government justifying the
invocation of the urgency clause. The respondents argued that, in fact, the
High Court has returned the finding that there was material before the State
Government for dispensing with the enquiry under Section 5A of the Act and that
finding was based on the examination by the High Court of the records of the
State Government. It was pointed out that going through the ordinary procedure
for acquisition of land would have taken years for disposal of the objections
while land was urgently required for public purpose, in this case, the
construction of interchange under the Yamuna Expressway Project, which was
absolutely essential for the purposes of running the highway. It was also
pointed out by the respondents that because of the unnecessary litigation in
the enquiries, the Project was hopelessly delayed and the cost had gone up from
Rs.1,700 crores to whopping Rs.9,700 crores. It was also further pointed out
that any waste of time would have invited the encroachments on the land, which
would have added to the further trouble. The enormousness of the Project which
required acquisition of 1,604 hectares of land involving 12,283 farmers, would
have taken years 5 if the enquiry under Section 5A was permitted and thereby,
the cost would have still further soared up.

Numbers of
authorities were relied upon by the parties.

39.Before
considering the issue, we must take stock of the finding returned by the High
Court. In the judgment (Civil Misc. Writ Petition No.31314 of 2009), the High
Court took stock of the allegations regarding malafides and dispensing with the
enquiry under Section 5A of the Act by referring to Paragraph Nos. 20, 21, 28,
29, 30, 31 and 32 of the Reply filed on behalf of the State Government through
an affidavit of one Shri Vinod Kumar Singh, ADM, Land Acquisition, Agra,
wherein it was pointed out that the Project was on the mammoth scale and there
was a great deal of possibility of encroachments if the Project was allowed to
linger. The High Court took note of the contention that YEIDA deposited 70% of
the estimated compensation on 29.5.2009 itself, since 10% of the estimated
compensation was already deposited by the acquiring body (YEIDA). The High
Court then referred to the various clauses of the Concession Agreement like
Clause Nos. 2.1, 2.2, 3.1, 3.2, 3.6 and 4.1 (a), (b), (c) & (d) to know
about the exact nature of the job which was 5 required to be done for building
the Expressway. It was after this that the High Court had recorded a finding
that the integrated Project was to cover a large area of land and the
requirement was of 25 million square meters of land to be acquired. The High
Court, therefore, noted the plea raised to the effect that the State Government
took correct decision to invoke the urgency clause, as on an enquiry into
disposal of individual objections as contemplated under Section 5A of the Act,
the Project itself would have lost all value and efficacy. The High Court also
noted the plea raised by YEIDA and the State Government about the likelihood of
encroachment. The High Court then referred to the two decisions of this State
of Uttar Pradesh & Ors. [2008(14) SCC 716] and Prakash Gangoli & Anr.
[2002 (4) SCC 160]. The High Court also referred to the counter affidavit of
one Shri V.C. Srivastava, Addl. General Manager, Jaypee Infratech Ltd. (owned
by Jaiprakash Industries Ltd.). The High Court then took stock of the plea
raised on behalf of the respondents on the basis of more than 25 judgments of
this Court. The High Court then referred to the decision 5 of U.P. & Ors.
[1998 (6) SCC 1], as also Babu Ram & Anr. High Court also referred to the
decision in Manju Lata ADJ 360 (DB)], which all were the decisions of the
Allahabad High Court itself. The Court then referred to the delay on account of
the litigations from 2001 till 2008 and referred to the contention raised on
behalf of the appellants relying on the judgment in Essco Fabs Pvt. Haryana
& Anr. (cited supra). It then recorded a finding in the following words:-
"In order to verify whether there was any material with the State
Government to form an opinion and to exercise its powers under Section 17(1)
and Section 17(4) of the Act, dispensing with enquiry under Section 5A of the
Act, and that the State Government had applied its mind on such material, we
summoned the records of the three concerned notifications. Shri Satish
Chaturvedi, Addl. Advocate General assisted by Shri M.C. Tripathi, Addl. Chief
Standing Counsel has produced the records alongwith the material collected by
the Collectors/District Magistrate and placed before the State Government for
forming an opinion. He has taken us through the various documents and 5 forms
on which the Collectors have recommended on Forms X alongwith justification of
their recommendations as well as its summary given in the office note placed
before the State Government. The three files produced before us relate to
village Kuberpur, district Agra, village Malupur Pargana Atmadpur, district
Agra and village Tappal district Aligarh for construction of interchange.

The notification
under Section 4(1)/17 of the Act for proposing acquisition of land of village
Kuberpur was made on 20.2.2009 and was published in two newspapers 'Amar Ujala'
and 'Dainik Jagran' on 27.7.2009. The munadi was made on 7.3.2009. The
notification under Section 6(1)/17 was issued on 15.6.2009 and was published in
the two newspapers on 18.6.2009. The notice under Section 9 was sent on
20.6.2009 and possession was taken on 8.7.2009. In the recommendation sent by
the District Magistrate, considered by the State Government on 11.2.2009 before
publication of notification under Section 4, the District Magistrate had after
giving details of land proposed to be acquired, had forwarded the Form-X
alongwith justification referred to in para 3 of the noting of the State
Government. The Collector, Agra recommended that in order to acquire the land
for Y.E.I.D.A. established under the U.P. Industrial Area Development Act, 1976
the preparation of plan, identification of land for units for industrial
development, infrastructural facilities, the lease or sale of the land, the
construction of building and for industrial units. Y.E.I.D.A. has been given
the regulating powers. The village Kuberpur is in the notified area of
Y.E.I.D.A. and which urgently requires the proposed land for construction of
interchange' for Y.E.I.D.A. In case of any delay there is a strong possibility
of encroachment on the land, which will affect the Project of Y.E.I.D.A. in
public interest. In para 4 it was stated that hearing of oral and written
objections will take several years causing indefinite delay in construction of
interchange.

The proposal was
forwarded with recommendation signed by the Under Secretary, Industrial
Development, Government of U.P., Special Secretary, Industrial Development ;
Shri Arun Kumar Sinha, Secretary, Rehabilitation and Industrial Development
Department; Government of U.P.; Shri V.N.

Garg, Principal
Secretary, Rehabilitation and Development, Government of U.P. on 12.2.2009 and
by Shri Shailesh Krishna, the Principal Secretary to Chief Minister on
18.2.2009.

5 As regard the
acquisition of land for Y.E.I.D.A. for interchange in village Malupur for
construction of Yamuna Expressway, Pargana Atmadpur, district Agra for
acquisition of 4.5322 hects. of land the proposal with recommendation of
District Magistrate, Agra on Form-X and the justification similar to and in the
same language as in the case of village Kuberpur, district Agra was placed
before the State Government along with the notings. The proposal bears
recommendations and signature of Under Secretary, Industrial Development
Department, Government of U.P. on 23.10.2008 ; Special Secretary, Industrial
Development, Government of U.P. on 24.10.2008; Principal Secretary, Industrial
Development and Commissioner on 30.11.2008 ; Special Secretary, Industrial
Development on 10.12.2008 and the Secretary to Chief Minister on 15.12.2008.

For village Tappal in
Tehsil Khair, district Aligarh proposal for acquisition of 48.572 hect. of land
for Y.E.I.D.A. for construction of Yamuna Expressway with the recommendation of
the District Magistrate and justification for invoking urgency clause was
placed before the State Government and was recommended and signed by the Under
Secretary and Special Secretary, Industrial Development Department on 16.1.2009
; Secretary, Rehabilitation and Industrial Development, Department of
Government of U.P. on 16.1.2009 ; Principal Secretary, Industrial Development
on 16.1.2009 and by the Secretary to the Chief Minister on the same day on
16.1.2009. The proposals were accepted by the State Government for acquisition
and for invoking urgency clause for construction of Yamuna Expressway by
Y.E.I.D.A."

Ultimately, the High
Court wrote a finding in the following words:- "The record produced before
us by the State Government enclosing the material of invoking urgency clause
and the satisfaction of the State Government on the said material, has
satisfied us that the State Government had sufficient material and had applied
its mind to record its opinion that there was urgency to acquire the land to
dispense with the enquiry under Section 5A of the Act."

5 We have
deliberately quoted the above part of the High Court judgment only to show the
meticulous care taken by the High Court in examining as to whether there was
material before the State Government to dispense with the enquiry under Section
5A of the Act. We are completely convinced that there was necessity in this
Project considering the various reasons like enormousness of the Project,
likelihood of the encroachments, number of appellants who would have required
to be heard and the time taken for that purpose, and the fact that the Project
had lingered already from 2001 till 2008. We do not see any reason why we
should take a different view than what is taken by the High Court. The law on
this subject was thoroughly discussed in Tika Ram & Ors. etc. 689], to
which one of us (V.S. Sirpurkar) was a party.

In that decision
also, we had reiterated that the satisfaction required on the part of Executive
in dispensing with the enquiry under Section 5A is a matter subject to
satisfaction and can be assailed only on the ground that there was no
sufficient material to dispense with the enquiry or that the order suffered
from malice.

It was also found on
facts in Tika Ram & Ors. etc. etc.

6 there was no
charge of malafide levelled against the exercise of power and there was
material available in support of the satisfaction on the part of the Executive
justifying the invocation of the provisions of Section 17. The position is no
different in the present case.

The High Court in the
present matter went a step ahead and examined the bulky original record itself
to find that there was full material available.

40.We
are not impressed by the argument that the encroachment issue was not a
relevant factor. This argument was based on the reported decision in Om Prakash
be said that the actual scenario in that case was different. In that case, the
Court was considering the acquisition of area of about 500 acres comprising of
437 plots, whereas, in the present case, the area to be acquired for the
Expressway alone was more than 1,600 hectares. This is apart from the 25
million square meters of land which was liable to be acquired for the purposes
of development of 5 land parcels. There was interlinking between the acquisition
of land for the highway and the acquisition of land for establishing the 6
Ors. (cited supra), there was unexplained delay after issuance of Section 4
notification, which is not the case here. Therefore, we do not think that what
has been said supra) would be apposite here. Every case has to be decided on
its own facts. This is apart from the fact that it is not specifically laid
down in Om Prakash & encroachment was never a relevant factor for
dispensing with the enquiry under Section 5A. Again we hasten to add that this
was not the only factor considered by the State Government and even the High
Court has not held the same to be the only factor for dispensing with the
enquiry.

41.In
view of the law laid down in the last judgment on U.P. & Ors. etc. etc.
(cited supra), we are of the clear opinion that the challenge by the appellants
on the ground that there was no urgency and, therefore, the enquiry under
Section 5-A of the Act should not have been dispensed with, cannot be accepted.
We hold accordingly.

42.No
other point was canvassed before us.

43.There
is no merit in the appeals. They are dismissed. The two impugned judgments of
the High Court i.e. Civil Misc. Writ Petition No. 48978 of 2008 (Balbir
5.10.2009 and Civil Misc. Writ Petition No. 31314 of 2009 decided on 30.11.2009
are confirmed. There shall be no costs.